By Jeffrey A. Kershaw | August 11, 2021

The Georgia Supreme Court has handed down a decision interpreting Georgia’s apportionment statute, O.C.G.A. § 51-12-33, as inapplicable in single-defendant cases. Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, No. S20G1419, 2021 WL 3501075 (Ga. Aug. 10, 2021). The Court’s decision, written by Justice Peterson, reflects a myopic focus on parsing the statutory language as narrowly as possible despite absurd results while disregarding common sense – along with the understanding of the provision long held by the General Assembly, judges, and lawyers based on the legislative intent of Georgia’s 2005 tort reform effort.

Section 51-12-33 has long been interpreted as allowing a jury to apportion a share of fault as to plaintiffs, defendants and non-parties, and also as having the effect of eliminating most third-party practice, including in single-defendant cases. The Court of Appeals recently announced a different rule, now embraced by the Supreme Court following the grant of certiorari.

The Supreme Court began by observing that subsection (a) of Section 51-12-33 applies only with respect to an apportionment of damages as to a plaintiff, and governs actions against “one or more persons.” Subsection (b), by contrast, applies to actions “against more than one person” with respect to damages apportionment amongst defendants. Ignoring the reality that the language of subsection (b) accounts only for the fact that damages may only be apportioned among multiple defendants in multi-defendant cases, the Court then turned to subsection (c), which provides:

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

Somehow, and despite the explicit instruction of subsection (c) that the fact-finder “shall consider the fault of all persons” in determining percentages of fault, the Supreme Court determined that subsection (c) applies only in multi-defendant cases contemplated by subsection (b), and not as to the apportionment of fault between plaintiff and defendant as set forth in subsection (a). Thus, according to the Court, a giant gap exists with respect to application of the apportionment statute rendering it inapplicable in single-defendant cases.

What’s most surprising, perhaps, is that no Justices dissented from Justice Peterson’s bizarre ruling. Although no legislators have yet weighed in, we expect the General Assembly to make an effort to revise the statute during the next legislative session in order to effectuate its original intent. 

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